February 28, 2003

ANALYSIS

Symbolic Value VS Ideology in Estrada Nomination

By: Victor Menaldo

Miguel Estrada, a partner in the Washington law firm of Gibson, Dunn & Crutcher, is a 42-year-old nominee to the 10th Circuit Court. One should not be surprised to learn that the specter of a prolonged filibuster hangs over his nomination. For several months now, Estrada’s nomination-process has been very contentious.

Democratic Senators have anchored their opposition on his record, legal experience, judicial temperament and judicial philosophy, and have sought to scuttle his confirmation to the D.C. Court of Appeals – resorting to a filibuster that will probably continue after the Senate reconvenes on February 24th.

Opposition to Estrada is strong among many prominent Hispanic groups, including the Mexican American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund and the Congressional Hispanic Caucus. Anti-Estrada groups cite ‘right wing extremism’ and lack of judicial experience – the Honduran immigrant has never been a judge – as their reasons for opposing the nominee.

On the other hand, maintaining that he is an exceptional judicial nominee on all counts, The Hispanic National Bar Association, League of the United Latin American Citizens (LULAC), the U.S. Hispanic Chamber of Commerce, Hispanic Business Roundtable and The Latino Coalition support Estrada. And there are a handful of notable Democrats who support Estrada. These supporters have praised Estrada’s intelligence and competence.

Despite his lack of experience on the bench, as an attorney Estrada’s record is impressive: He has argued 15 cases before the U.S. Supreme Court and won two-thirds of those cases. From 1992 to 1997, Estrada served as Assistant to the Solicitor General of the United States and served as a clerk to Supreme Court Justice Anthony M. Kennedy.

Senators and Hispanic organizations that oppose Estrada have accused him of stonewalling the Senate – even though he answered most of his antagonists’ questions during Senate Judiciary hearings last year. And because Senate Democrats no longer have control over the Judiciary Committee, on February 14th they resorted to a highly risky, filibuster.

This is the first time in history that a vote on a lower-court nominee has been delayed in this manner, leaving Senate Republicans with an uphill struggle to gain a supermajority vote that will induce cloture and force a Senate vote. Democrats are hoping that in today’s heightened political atmosphere, weeks of filibustering will lead to Estrada’s withdrawal.

To bolster their opposition to Estrada, there are Democrats who have claimed that the Honduran immigrant blocked liberals from clerking positions while he worked for Supreme Court Justice Kennedy. Although this accusation is based on rather shaky evidence, it has scarred many liberals into believing that Estrada is a dangerous doctrinaire who is hell-bent on riding roughshod over laws that protect civil liberties.

Seeking evidence to buttress this accusation, Democrats have demanded that the Justice Department turn over a ream of memoranda that he produced during his tenure as assistant to the U.S. solicitor general from 1992 to 1997. The Justice Department has demurred, claiming that an open-ended demand of this sort is a stark departure from standard requests that serve to clarify a specific case for Senate Judiciary members.

The Senate Democrats’ delay of Estrada’s confirmation is half political struggle – an attempt to blunt Bush’s power and influence – and half emotional statement against his political views. Some Hispanic fear that, by opposing Estrada based on ideology, his adversaries are denying the country a capable circuit judge who is an obvious role model for both Hispanics and Anglos.

When it comes to judicial nominations, we are now resigned to the idea that ideology matters – thanks in part to Senator Charles Schumer’s candid editorial in the New York Times last fall in which the Senator disclosed the fact that ideology is an important selection-criterion. However, this is only a partial explanation for the delay in the judicial nomination process: The Senate’s dalliance with judicial confirmations began during the Carter Administration. At great expense to a nominee’s home state senators – who were once a judiciary nominees’ de facto nominators and patrons – President Carter pushed through reforms that wrested control from the Senate over the screening and selection of judgeships to the U.S. Courts of Appeals and U.S. District Courts.

Naturally, the Senate retaliated in kind, ratcheting up the scrutiny of nominees and, concomitantly, prolonging the duration of nominee-confirmations. So, in many ways, the Estrada row is simply another chapter in the political posturing that, since the early 1980s, has become the norm for members on both side of the aisle.

To be sure, there are both liberals and conservatives who lament the emasculation of the Senate’s advice and consent role – the primary function envisioned for the Senate Judiciary Committee by the Constitution’s framers. Indeed, Alexander Hamilton would roll in his grave to learn that the President’s power to nominate judges that he embedded in the Constitution is no longer reciprocated in the way he envisaged: With Senatorial deference.

In the end, the arguments against Estrada may be deflated by the symbolic value he holds for Hispanics of all political stripes. Many Hispanics view the Estrada filibuster as a strictly partisan affair fomented by liberals’ very rational fear that conservatives have found a soft-spoken role model that irresistibly appeals to Hispanics.

Menaldo is pursuing his Masters in Political Economy at Claremont University.

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